NSW Caselaw
New South Wales Supreme Court
CITATION : Solution 1 Pty Ltd v Optus Networks Pty Limited & Ors [2010] NSWSC 1060 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 6, 7 & 8 September 2010
JUDGMENT DATE : 17 September 2010
JUDGMENT OF : Hammerschlag J
DECISION : Plaintiff's claim dismissed with costs. The injunction ordered on 29 July 2010 is dissolved
CATCHWORDS : CONTRACT – construction – commercial agreement – under a Business Direct Channel Partner Agreement ("the Agreement") the defendants ("Optus") engaged the plaintiff to market and sell telecommunications products and services on its behalf – clause 27.3(a) ("the first clause") of the Agreement provided that Optus may terminate the Agreement by giving notice if the plaintiff breached any term of the Agreement – clause 27.3(b) ("the second clause") of the Agreement provided that Optus may terminate the Agreement for any reason and at any time in its absolute discretion by giving notice – Optus purported to terminate the Agreement by notice stating that it was under the second clause – the plaintiff contended that on its proper construction the notice was invalid because it was under the first clause and breach had not been established – IMPLIED TERMS – in the alternative the plaintiff contended that Optus was under an implied obligation to act in good faith in exercising its right to terminate under the second clause and had acted in breach of that obligation – HELD – on its proper construction the notice was under the second clause – Optus was under no obligation to act in good faith in exercising the right to terminate and if it was it had not breached it
CATEGORY : Principal judgment
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 International Air Transport Association v Ansett Australia Holdings Ltd (Subject to Deed of Company Arrangement) (2008) 212 ALR 47 CASES CITED : Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 Overlook v Foxtel (2002) Aust Contract Reports 90-143 Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15
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